In re Stark

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 114,583
In the Matter of STEPHEN M. STARK,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed June 10, 2016. Two-year suspension suspended,
and respondent placed on 2-years' probation.
Stanton A. Hazlett, Disciplinary Administrator, argued the cause, and was on the formal
complaint for the petitioner.
David M. Rapp, of Hinkle Law Firm, L.L.C., of Wichita, argued the cause, and Stephen M. Stark,
respondent, argued the cause pro se.
Per Curiam: This is an original proceeding in discipline filed by the office of the
Disciplinary Administrator against the respondent, Stephen M. Stark, of Wichita, an
attorney admitted to the practice of law in Kansas in 1984.
On February 3, 2015, the office of the Disciplinary Administrator filed a formal
complaint against the respondent alleging violations of the Kansas Rules of Professional
Conduct (KRPC). The respondent filed an answer on March 9, 2015. The parties entered
into a written stipulation on April 20, 2015. A hearing was held on the complaint before a
panel of the Kansas Board for Discipline of Attorneys on April 21, 2015, where the
respondent was personally present and was represented by counsel. The hearing panel
determined that respondent violated KRPC 1.3 (2015 Kan. Ct. R. Annot. 461)
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(diligence); 1.4(a) (2015 Kan. Ct. R. Annot. 482) (communication); and 8.4(d) (2015
Kan. Ct. R. Annot. 672) (engaging in conduct prejudicial to the administration of justice).
Upon conclusion of the hearing, the panel made the following findings of fact and
conclusions of law, together with its recommendation to this court:
"Findings of Fact
....
"8. On February 20, 2009, Robert D. Myers, city attorney for the City of
Newton, Kansas, negotiated an option to purchase 120 acres of real estate owned by the
Claassen family at a price of $7,500.00 per acre, on behalf of the city. The Claassens
requested assurance that they would receive at least as favorable a price as other property
owners who sold their property to the city. Therefore, the city agreed to include a 'Most
Favored Nation' (MFN) clause in the Claassen option agreement. The MFN clause would
assure the Claassens would receive the best price per acre paid by the city for other
property. The Claassen option expired on August 31, 2010.
"9. On July 29, 2009, the city purchased a separate tract for the industrial
park at $8,000.00 per acre. On January 8, 2010, the city acquired another option to
purchase property in connection with the industrial park at a price of $10,000.00 per acre.
"10. On February 18, 2010, the city exercised its option to purchase the
Claassen property, but only offered to pay the Claassens $8,000.00 per acre. The
Claassens believed they were entitled to $10,000.00 per acre. The city and the Claassens
agreed to close on the purchase of the Claassen property at a price of $8,000.00 per acre.
However, the city and the Claassens entered into a Reservation of Rights Agreement
under which the Claassens reserved the right to claim a higher price pursuant to the MFN
clause. The Reservation of Rights provision contained additional post-closing obligations
not set forth above, such as the parties' obligation to negotiate in good faith to attempt to
resolve any dispute over the claim for additional compensation.
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"11. In December 2010, the Claassens filed a lawsuit against the city claiming
$240,000.00 in damages ($2,000.00 per acre for 120 acres).
"12. The city initially engaged the respondent in 2010, to review the Claassen
option contract and provide advice regarding the interpretation of the MFN clause. When
the Claassens sued the city over the price of the property, the respondent was retained to
handle the litigation on behalf of the city. The respondent was to communicate with the
city through Mr. Myers. Mr. Myers would normally have served as co-counsel in the
litigation, but it was anticipated that he would be a material witness in the litigation due
to his involvement in negotiating the option with the Claassens. Mr. Myers was involved
in the strategic planning for the litigation. It was agreed that the appropriate strategy was
to move for summary judgment as soon as possible. Alternative arguments would be
advanced regarding the MFN clause in the Claassen option: (1) there was no ambiguity
regarding the option terms, so no extrinsic evidence would be necessary to construe it; (2)
and, the city's limitations under the Kansas Cash Basis Law and Budget Law rendered the
option void.
"13. From that time until the first part of 2012, the parties were involved in
discovery and various other preliminary matters. During that time, the city also retained
the respondent to negotiate with Claassens' counsel to get the transaction closed with the
Reservation of Rights Agreement. The respondent successfully handled that portion of
the representation.
[14. Not used.]
"15. On June 5, 2012, Mr. Myers sent the respondent an e-mail asking for a
status report regarding the case and asking what needed to be done with respect to the
filing of a motion for summary judgment. In July of 2012, the respondent obtained
approval from Mr. Myers to have a summer law clerk perform some research on the case.
"16. On July 11, 2012, the plaintiff's attorney, Lee Thompson, deposed Mr.
Myers.
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"17. On September 28, 2012, the respondent's firm issued a billing invoice for
time worked in July and August of 2012. That billing included an entry by the respondent
on August 20, 2012, with the description 'review for scheduling.' No billing memos or
invoices were provided to the city after the invoice dated September 28, 2012.
"18. A scheduling conference was held in September, 2012. The respondent
failed to inform Mr. Myers of the scheduling conference held in September, 2012.
"19. On October 31, 2012, the respondent filed a motion for summary
judgment on behalf of the city. The motion asserted that the Claassens' claim was barred
by the Cash Basis Law and Budget Law. The memorandum in support of the motion for
summary judgment did not present any argument that the MFN clause was unambiguous.
The motion also did not address the secondary issues in the lawsuit related to the
Claassens' personal property. The respondent failed to discuss the motion with Mr.
Myers. Further, the respondent failed to inform Mr. Myers that a motion had been filed.
Finally, the respondent failed to provide Mr. Myers with a copy of the motion.
"20. The Cash Basis Law and Budget Law arguments were based on the
theory that the city had not appropriated the money that would have been necessary to
pay the higher purchase price demanded by the Claassens. In the motion for summary
judgment, the respondent represented that the argument would be supported by an
affidavit from Mr. Myers. Specifically, the memorandum in support of the motion
referred to an affidavit of Mr. Myers and the affidavit was listed as an exhibit to the
memorandum. However, the affidavit was not attached. Although the respondent
prepared a draft of an affidavit for Mr. Myers to sign, it was never presented to Mr.
Myers for review and execution. While the respondent had not submitted the affidavit to
Mr. Myers for review and execution, he believed, based on past communications with
Mr. Myers and Mr. Myers' involvement as the city's 30(b)(6) deposition witness, that Mr.
Myers had personal knowledge of the facts, law, and concepts set forth in the draft
affidavit. The respondent also believed that Mr. Myers would be willing to sign the
affidavit as drafted.
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"21. On November 28, 2012, Mr. Thompson sent the respondent an e-mail
requesting the missing affidavit, noting: 'I would assume that we got it; but could you e-
mail or fax me a copy?' Mr. Thompson also requested a 5-day extension of time to
respond to the motion for summary judgment. On November 29, 2012, the respondent
agreed to the 5-day extension and told Mr. Thompson that the absence of the affidavit
was an 'oversight.' On December 4, 2012, Mr. Thompson again e-mailed the respondent
asking for a copy of the Myers affidavit. The respondent responded the next day, saying:
'I will check w/Myers, but I'm buried today.'
"22. On December 7, 2012, Mr. Thompson filed a response to the
respondent's motion for summary judgment.
"23. On December 17, 2012, a hearing was held on the city's motion for
summary judgment. The court asked the respondent about the missing affidavit, to which
the respondent replied:
'I've not obtained exhibit 9, the Myers' [sic] affidavit, yet. Since counsel's
brief indicated that whatever the facts attested to by Mr. Myers—
prepared to argue around those, I went ahead and proceeded forward, but
I'll shore that up and provide that.'
Later in that hearing, the court again raised the issue of the affidavit and it said:
'It sounds like this isn't a big deal, the affidavit from Mr. Myers, exhibit
9, but just out of an abundance of caution, Mr. Stark, why don't you, if
you could—and I'm assuming you can. If you could, get that in our court
file and then also to Mr. Thompson, say before the end of the day
tomorrow. I am assuming it's in your materials.'
As part of this discussion about the affidavit, Mr. Thompson raised a concern about
obtaining some assurance that the affidavit actually existed at the time of hearing:
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'I'm just a little bothered. I, of course, want counsel to represent to the
Court or show that that was done prior to today's argument. I mean—and
I'm not questioning Mr. Stark. He and I know each other, but I haven't
seen it or anything else, and I think to protect my client, we need that
representation that it was available and was part of what should have
been submitted.'
The court acknowledged Mr. Thompson's concern, saying, 'Mr. Stark if you could let us
know along the lines of what Mr. Thompson suggests, what the availability was of that
exhibit.' The respondent did not respond on the record regarding the status of the
affidavit. No further discussion was had regarding the affidavit at the hearing.
"24. The respondent failed to communicate with Mr. Myers from July, 2012,
until December 19, 2012, when the respondent phoned Mr. Myers. Mr. Myers was
unavailable, but responded by an e-mail inviting the respondent to provide him
information regarding the law clerk's research and inquiring about the summary judgment
motion. The respondent did not reply to Mr. Myers' December 19, 2012, e-mail. He did
attempt to reach Mr. Myers by phone on two occasions, but Mr. Myers was out of the
office at those times.
"25. On December 20, 2012, Mr. Thompson filed a supplemental
memorandum in opposition to the respondent's motion for summary judgment. The
respondent failed to provide Mr. Myers with a copy of the supplemental memorandum in
opposition to the respondent's motion for summary judgment.
"26. The court held a pretrial conference on January 4, 2013. On January 11,
2013, a pretrial conference order was entered setting the case for a 3-day jury trial
beginning February 20, 2013. The respondent failed to inform Mr. Myers that a pretrial
conference had been held, that a pretrial order had been entered, or that the court
scheduled the case for jury trial beginning February 20, 2013.
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"27. On January 14, 2013, Judge Joe Dickinson sent the parties a letter
denying the city's motion for summary judgment. Regarding the affidavit, Judge
Dickinson wrote:
'At the hearing it was brought to my attention that exhibit 9 was never
filed by the defense, although it was referenced in the Memorandum in
Support of the Motion for Summary Judgment (see page 6). I checked
again today and the Court has never received exhibit 9, apparently an
Affidavit of Robert Myers. I've seen, as did claimant's counsel, that this
was inadvertent and would be supplied by the defendant, and
accordingly, I allowed additional time to supply the document. In any
event, setting that issue aside, I find that the city's motion for summary
judgment should be denied . . . .'
The respondent did not advise Judge Dickinson that the affidavit had never been signed.
The respondent failed to inform Mr. Myers that the court sent the parties a letter denying
the city's motion for summary judgment. The respondent failed to provide a copy of
Judge Dickinson's letter to Mr. Myers.
"28. In the journal entry and order denying motion for summary judgment, the
court noted the following regarding the affidavit:
'The factual basis for the city's argument was set out in paragraphs 27
through 33 of its Memorandum, citing the Affidavit of Robert Myers,
City Attorney for Newton. However, the reference to the affidavit was
not attached to the Memorandum. Even though the issue was raised in
Plaintiffs' response at oral argument and by way of a Supplemental
Memorandum, no affidavit was filed of record.'
The respondent failed to provide Mr. Myers with a copy of the journal entry and the order
denying motion for summary judgment.
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"29. Through January and early February of 2013, the respondent and Mr.
Thompson exchanged various communications regarding possible mediators for the case.
On February 13, 2013, they agreed the trial date should be rescheduled to May 8, 2013,
and May 9, 2013, to allow additional time for mediation. From February 21, 2013,
through April 5, 2013, Mr. Thompson contacted the respondent at least six times to
address potential mediators and waiver of a jury trial. The respondent did not respond to
Mr. Thompson. On March 13, 2013, a legal secretary from the respondent's firm, Linda
Hansen, sent an e-mail to the respondent stating:
'Lee Thompson is getting desperate. He left a voicemail message for me
saying he had been trying to contact you by e-mail and phone to schedule
mediation and wondered if I could help him. Will you call him?'
"30. On April 5, 2013, Mr. Thompson sent a letter to the respondent stating
the following:
'I have written, called and e-mailed on numerous occasions
trying to get your input on acceptable dates to conduct a mediation in the
captioned case. I agreed to your suggestion of Mert Buckley as a
mediator and identified numerous dates I would be available. . . .
'Given the absence of a response to possible mediation, my
clients have reviewed the case with me and a [sic] willing to make an
offer of settlement at this time. . . .'
Mr. Thompson's April 5, 2013, letter further outlines a settlement proposal in which the
Claassens would accept a lower cash amount ($200,000.00) in exchange for favorable
leasing terms related to other farmland owned by the city. The respondent failed to
communicate the settlement offer to Mr. Myers.
"31. In early May 2013, Mr. Myers was contacted by telephone by the
respondent and three other attorneys in his firm. At that time, the respondent, for the first
time, informed Mr. Myers that the case was scheduled for trial on May 8, 2013, and May
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9, 2013. The respondent and the other attorney also informed Mr. Myers of other matters
that had already transpired without his knowledge, including: entry of a scheduling
order; filing of a motion for summary judgment; argument upon the motion of summary
judgment; ruling (against the city) on the motion for summary judgment; and entry of a
pretrial order closing discovery and identifying the issues and witnesses in the case.
"32. Thereafter, Mr. Myers retained other counsel to represent the city in the
pending litigation. Following the engagement of substitute counsel for the city, a motion
was filed supported by an affidavit from the respondent to re-open the pretrial proceeding
and continue the trial.
"33. As a result of the respondent's conduct, the trial was continued from May
2013, to August 2013, the court amended the pretrial conference order, and the court re-
opened discovery.
"34. On May 2, 2013, the respondent self-reported his misconduct to the
disciplinary administrator. On May 10, 2013, Mr. Myers filed a complaint against the
respondent for the same conduct.
"Conclusions of Law
"35. Based upon the respondent's stipulation and the above findings of fact,
the hearing panel concludes as a matter of law that the respondent violated KRPC 1.3,
KRPC 1.4, and KRPC 8.4(d) as detailed below.
"KRPC 1.3
"36. Attorneys must act with reasonable diligence and promptness in
representing their clients. See KRPC 1.3. The respondent failed to diligently and
promptly represent the City of Newton, Kansas. Because the respondent failed to act with
reasonable diligence and promptness in representing his client, the hearing panel
concludes that the respondent violated KRPC 1.3.
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"KRPC 1.4
"37. KRPC 1.4(a) provides that '[a] lawyer shall keep a client reasonably
informed about the status of a matter and promptly comply with reasonable requests for
information.' In this case, the respondent violated KRPC 1.4(a) when he failed to inform
Mr. Myers of the many events occurring in the litigation. Accordingly, the hearing panel
concludes that the respondent violated KRPC 1.4(a).
"KRPC 8.4(d)
"38. 'It is professional misconduct for a lawyer to . . . engage in conduct that
is prejudicial to the administration of justice.' KRPC 8.4(d). The respondent stipulated
that he engaged in conduct that was prejudicial to the administration of justice by:
a. failing to present the affidavit to Mr. Myers for consideration and
signature;
b. making reference in the memorandum to an affidavit that had not been
reviewed or signed by Mr. Myers;
c. filing a motion for summary judgment and memorandum without
attaching a signed affidavit; and
d. failing to advise opposing counsel or the court that the affidavit had not
been presented to Mr. Myers for consideration or signature.
The respondent's conduct was prejudicial to the administration of justice. As such, the
hearing panel concludes that the respondent violated KRPC 8.4(d).
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"American Bar Association
Standards for Imposing Lawyer Sanctions
"39. In making this recommendation for discipline, the hearing panel
considered the factors outlined by the American Bar Association in its Standards for
Imposing Lawyer Sanctions (hereinafter 'Standards'). Pursuant to Standard 3, the factors
to be considered are the duty violated, the lawyer's mental state, the potential or actual
injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating
factors.
"40. Duty Violated. The respondent violated his duty to his client to provide
diligent representation and adequate communication. The respondent violated his duty to
the legal profession to refrain from conduct which is prejudicial to the administration of
justice.
"41. Mental State. The respondent negligently and knowingly violated his
duties.
"42. Injury. As a result of the respondent's misconduct, the respondent caused
potential injury to his client, the City of Newton, Kansas.
"43. Aggravating and Mitigating Factors. Aggravating circumstances are any
considerations or factors that may justify an increase in the degree of discipline to be
imposed. In reaching its recommendation for discipline, the hearing panel, in this case,
found the following aggravating factors present:
a. Prior Disciplinary Offenses. The respondent has been previously
disciplined on one occasion. On February 20, 2003, the respondent entered into a
diversion agreement. In the diversion agreement, the respondent stipulated that he
violated KRPC 1.3 and KRPC 1.4.
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b. A Pattern of Misconduct. The respondent engaged in a pattern of
misconduct by neglecting this matter for an extended period of time and by repeatedly
failing to inform Mr. Myers regarding the status of the litigation.
c. Multiple Offenses. The respondent committed multiple rule violations.
The respondent violated KRPC 1.3, KRPC 1.4, and KRPC 8.4(d). Accordingly, the
hearing panel concludes that the respondent committed multiple offenses.
d. Substantial Experience in the Practice of Law. The Kansas Supreme
Court admitted the respondent to practice law in the State of Kansas in 1984. At the time
of the misconduct, the respondent has been practicing law for more than 25 years.
"44. Mitigating circumstances are any considerations or factors that may
justify a reduction in the degree of discipline to be imposed. In reaching its
recommendation for discipline, the hearing panel, in this case, found the following
mitigating circumstances present:
a. Personal or Emotional Problems if Such Misfortunes Have Contributed
to Violation of the Kansas Rules of Professional Conduct. The respondent has suffered
from chronic depression and anxiety throughout the majority of his adult life. He has
sought treatment for this condition and is currently working with a treatment professional
to control his depression. It is clear that the respondent's depression contributed to the
misconduct.
b. The Present and Past Attitude of the Attorney as Shown by His or Her
Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the
Transgressions. The respondent fully cooperated with the disciplinary process.
Additionally, the respondent admitted the facts that gave rise to the violations. Finally,
the respondent stipulated that he violated KRPC 1.3, KRPC 1.4, and KRPC 8.4(d). The
respondent's cooperation is a significant mitigating factor.
c. Previous Good Character and Reputation in the Community Including
Any Letters from Clients, Friends and Lawyers in Support of the Character and General
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Reputation of the Attorney. The respondent is an active and productive member of the
bar of Wichita, Kansas. The respondent also enjoys the respect of his peers and generally
possesses a good character and reputation as evidenced by several letters received by the
hearing panel.
d. Remorse. At the hearing on this matter, the respondent expressed
genuine remorse for having engaged in the misconduct.
e. Remoteness of Prior Offenses. The respondent's participation in the
attorney diversion program in 2003 is remote in time but not in character to the
misconduct in this case.
"45. In addition to the above-cited factors, the hearing panel has thoroughly
examined and considered the following Standards:
'4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for
a client and causes injury or potential injury to a
client; or
(b) a lawyer engages in a pattern of neglect and
causes injury or potential injury to a client.'
"Recommendation
"46. The disciplinary administrator recommended that the respondent be
suspended from the practice of law for a period of 2 years. The disciplinary administrator
further recommended that the imposition of the suspension be suspended and that the
respondent be placed on probation subject to the terms and conditions detailed in the
respondent's proposed probation plan. Finally, the disciplinary administrator
recommended that the respondent continue in treatment, that the respondent execute
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appropriate releases, and that the treatment provider provide quarterly written reports
regarding the respondent's progress in treatment.
"47. The respondent recommended that he be suspended for a period of 90
days and that he be granted probation from that suspension subject to the terms and
conditions detailed in his proposed probation plan.
"48. In order for the hearing panel to consider recommending that the
respondent be placed on probation, the respondent must first comply with Kan. Sup. Ct.
R. 211(g)(1) and Kan. Sup. Ct. R. 211(g)(2). Additionally, the hearing panel must then
consider, based upon the factors detailed in Kan. Sup. Ct. R. 211(g)(3), whether to
recommend to the Court that the respondent be placed on probation.
'(g) Requirements of Probation
(1) If the Respondent intends to request that the Respondent
be placed on probation for violating the Kansas Rules of Professional
Conduct or the Kansas Supreme Court Rules, the Respondent shall
provide each member of the Hearing Panel and the Disciplinary
Administrator with a workable, substantial, and detailed plan of
probation at least fourteen days prior to the hearing on the Formal
Complaint. The plan of probation must contain adequate safeguards that
will protect the public and ensure the Respondent's full compliance with
the disciplinary rules and orders of the Supreme Court.
(2) If the Respondent provides each member of the Hearing
Panel and the Disciplinary Administrator with a plan of probation, the
Respondent shall immediately and prior to the hearing on the Formal
Complaint put the plan of probation into effect by complying with each
of the terms and conditions of the probation plan.
(3) The Hearing Panel shall not recommend that the
Respondent be placed on probation unless:
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(i) the Respondent develops a workable,
substantial, and detailed plan of probation and
provides a copy of the proposed plan of
probation to the Disciplinary Administrator and
each member of the Hearing Panel at least
fourteen days prior to the hearing on the Formal
Complaint;
(ii) the Respondent puts the proposed plan of
probation into effect prior to the hearing on the
Formal Complaint by complying with each of
the terms and conditions of the probation plan;
(iii) the misconduct can be corrected by probation;
and
(iv) placing the Respondent on probation is in the
best interests of the legal profession and the
citizens of the State of Kansas.'
Kan. Sup. Ct. R. 211(g). The respondent provided each member of the hearing panel and
the disciplinary administrator with a workable, substantial, and detailed plan of probation
at least fourteen days prior to the hearing on the formal complaint. The respondent's plan
contains adequate safeguards that will protect the public and ensure the Respondent's full
compliance with the disciplinary rules and orders of the Supreme Court. The respondent
put the plan of probation into effect by complying with each of the terms and conditions
of the probation plan. The respondent's misconduct can be corrected by probation.
Finally, placing the respondent on probation is in the best interests of the legal profession
and the citizens of the State of Kansas.
"49. The hearing panel has carefully considered the facts of this case. The
respondent's depression is profound and the mitigation factors are significant. As a result
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of the persuasive factors in mitigation, the hearing panel unanimously recommends that
the respondent be suspended for a period of 2 years. The hearing panel further
recommends that the respondent be granted probation, subject to the following terms and
conditions:
a. Term of Probation. The respondent will remain on probation for a period
of 2 years.
b. Practice Supervision. Charles E. Cole, Jr. will serve as the respondent's
practice supervisor. The respondent will allow the practice supervisor full and complete
access to his files, calendar, and trust account records. The respondent will comply with
all requests made by the practice supervisor. The respondent will meet with the practice
supervisor on a monthly basis throughout the period of probation. The practice supervisor
will provide a report to the respondent and the disciplinary administrator's office every
quarter throughout the period of probation, detailing the respondent's compliance with
each term and condition of probation. The practice supervisor will be acting as an officer
and agent of the Kansas Supreme Court while supervising the respondent on probation.
The practice supervisor will be afforded all immunities granted by Kan. Sup. Ct. R. 223
during the course of his supervising activities.
c. Inventory. Within 30 days of the date of this report, the respondent will
provide the practice supervisor with an inventory of cases and clients. The inventory will
include all deadlines and scheduled activity. Each month, the respondent will provide the
practice supervisor with an updated inventory.
d. Limitation on Practice. The respondent will not accept any new clients or
new matters for existing clients unless an additional member of his law firm is added as
the responsible party for the new matter. The respondent agrees to engage the assistance
of an additional member of his law firm on all currently existing and newly initiated
litigation matters. The respondent will not serve as first-chair on any litigation matters.
e. Communication. The respondent will review every open file to determine
whether he has adequately communicated with each client. For every case where no
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activity has taken place for 30 days or more, the respondent will make written contact
with the client providing a status report.
f. Billing. The respondent will ensure that monthly billing statements are
sent to each client unless a written agreement with the client provides otherwise.
g. Audits. Within 30 days of the date of this report, the practice supervisor
will conduct an initial audit of the respondent's files. Thereafter, every 6 months, the
practice supervisor will conduct additional audits. At the conclusion of probation, the
practice supervisor will conduct a final audit. If the practice supervisor discovers any
violations of the Kansas Rules of Professional Conduct, the practice supervisor will
include such information in his report. The practice supervisor will provide the
disciplinary administrator and the respondent with a copy of each audit report. The
respondent will follow all recommendations and correct all deficiencies noted in the
practice supervisor's periodic audit reports.
h. Psychological Treatment. The respondent will continue his treatment for
depression and anxiety throughout the period of supervised probation, unless the
treatment provider determines that continued treatment is no longer necessary. The
treatment provider will notify the practice supervisor and the disciplinary administrator in
the event that the respondent discontinues treatment against the recommendation of the
treatment provider during the probationary period. The respondent will provide the
treatment provider with appropriate releases of information to allow the treatment
provider to provide such information to the practice supervisor and the disciplinary
administrator.
i. Continued Cooperation. The respondent will continue to cooperate with
the disciplinary administrator. If the disciplinary administrator requests any additional
information, the respondent will timely provide such information.
j. Additional Violations. The respondent will not violate the terms of his
probation or the provisions of the Kansas Rules of Professional Conduct. In the event that
the respondent violates any of the terms of probation or any of the provisions of the
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Kansas Rules of Professional Conduct at any time during the probationary period, the
respondent will immediately report such violation to the practice supervisor and the
disciplinary administrator. The disciplinary administrator will take immediate action
pursuant to Kan. Sup. Ct. R. 211(g).
"50. Costs are assessed against the respondent in an amount to be certified by
the office of the disciplinary administrator."
DISCUSSION
In a disciplinary proceeding, this court considers the evidence, the findings of the
disciplinary panel, and the arguments of the parties and determines whether violations of
KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct
must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945,
258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2015 Kan. Ct. R. Annot. 350).
Clear and convincing evidence is "'evidence that causes the factfinder to believe that "the
truth of the facts asserted is highly probable."'" In re Lober, 288 Kan. 498, 505, 204 P.3d
610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Respondent was given adequate notice of the formal complaint, to which he filed
an answer, and adequate notice of the hearing before the panel and the hearing before this
court. The respondent did not file exceptions to the hearing panel's final hearing report.
As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c) and (d)
(2015 Kan. Ct. R. Annot. 369).
The evidence before the hearing panel establishes by clear and convincing
evidence the charged misconduct violated KRPC 1.3 (2015 Kan. Ct. R. Annot. 461)
(diligence); 1.4(a) (2015 Kan. Ct. R. Annot. 482) (communication); and 8.4(d) (2015
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Kan. Ct. R. Annot. 672) (engaging in conduct prejudicial to the administration of justice),
and it supports the panel's conclusions of law. We adopt the panel's conclusions.
The only remaining issue before us is the appropriate discipline for respondent's
violations. As noted, the panel recommended a 2-year suspension from the practice of
law in the state of Kansas but that the suspension be stayed to allow respondent to be
placed on probation under the terms and conditions set forth in its final hearing report. At
oral arguments before this court, the Disciplinary Administrator recommended the panel's
proposed sanction of a 2-year suspension, stayed to allow respondent to be placed on a 2-
year probation upon the panel's proposed terms and conditions, but with the added
condition that respondent make a reasonable effort to pay restitution for the additional
legal fees his misconduct cost his aggrieved client. Respondent's counsel argued for a
shorter term for the underlying suspension but agreed to the 2-year probation.
We are not bound by the recommendations of either the Disciplinary
Administrator or the hearing panel. See In re Mintz, 298 Kan. 897, 911-12, 317 P.3d 756
(2014). We fashion a disciplinary sanction in each case presented to us based upon its
particular facts and circumstances, including the aggravating and mitigating
circumstances of the violations. 298 Kan. at 912. In this case, however, a majority of the
court finds the sanction recommended by the Disciplinary Administrator at the hearing
before this court to be appropriate; a minority of the court would impose a shorter term
for the underlying suspension.
Specifically, we hold that the respondent is suspended from the practice of law in
the state of Kansas for a period of 2 years but that suspension is stayed and the
respondent is placed on probation for a period of 2 years from and after the filing of this
opinion, on the terms and conditions set forth in the hearing panel's final hearing report,
as outlined above, with the additional condition that respondent make a reasonable effort
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to pay restitution for the additional legal fees his misconduct cost his aggrieved client.
The termination of probation, whether probation was successful or not, shall be governed
by the provisions of Supreme Court Rule 211(g) (2015 Kan. Ct. R. Annot. 350). A
minority of the court would impose a different condition of probation regarding a more
certain restitution to the aggrieved client.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Stephen M. Stark be and is hereby suspended
from the practice of law in the state of Kansas, in accordance with Supreme Court Rule
203(a)(2) and (5) (2015 Kan. Ct. R. Annot. 293), for a 2-year period, but imposition of
that discipline shall be stayed and respondent placed on probation for a 2-year period
from the date this opinion is filed, upon the terms and conditions outlined above.
IT IS FURTHER ORDERED that the termination of respondent's probation, whether
probation was successful or not, shall be effected pursuant to Supreme Court Rule
211(g).
IT IS FURTHER ORDERED that the costs of these proceedings be assessed to the
respondent and that this opinion be published in the official Kansas Reports.
BEIER, J., not participating.
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